Tuesday, October 10, 2006

Billed as a measure to rein in the abuse of eminent domain, this trojan horse constitutional amendment is really about destroying the government's ability to enact any land-use restrictions whatsoever. Prop 90 is bankrolled almost entirely by Howard Rich, a rabidly libertarian real-estate investor in New York.

Read more...The stated purpose of Prop 90 is to end the abuse of eminent domain, the ability of the government to force you to sell your land for public purposes. The recent U.S. Supreme Court decision Kelo v. New London held that the government can use eminent domain if there is any benefit to the public — specifically, in that case, an increase in the tax base — from the seizure of the land. Traditionally, eminent domain has been reserved for more direct public benefits: building highways, railroads, schools, jails, and the like. The city of New London, Connecticut, used eminent domain to seize people's homes in order to turn the land over to a private developer to build an office park — a use far outside most people's understandings of the bounds of their authority.

The devil is in the details, though. Prop 90 does curtail the abuse of eminent domain by adding restrictions such as this one: "Private property may not be taken or damaged for private use." [Prop 90, Section 3, amending Section 19(a)(1) of the California Constitution], but things get much dicier down in Section 19(b)(8):

Except when taken to protect public health and safety, "damage" to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the downzoning of private property, the elimination of any access to private property, and limitations on the use of private air space. "Government action" shall mean any statute, charter provision, ordinance, resolution, law, rule or regulation.

That means no new environmental regulations and no new zoning restrictions, and it means that any government regulation of any kind could be tied up in court for years with any claim of "substantial economic loss to private property."

The ballot argument in favor of Prop 90 says, "[O]pponents falsely claim that the measure will hurt the enforcement of environmental regulations. But all existing California environmental laws and regulations are expressly protected." The key word is existing. Any new environmental regulations would be prohibitively expensive. On the flip side, the opponents' ballot argument hits a bullseye:

If local voters pass a measure to limit a new development to 500 houses — instead of 2,000 houses that a developer wants to build — under Prop 90, the developer could demand a payment for the value of the remaining 1,500 houses. Even if local community services and infrastructure would be strained by the larger development, Prop 90 would put taxpayers at risk for payment.

The proponents of Prop 90 are shaking their fists, saying that "the government" should pay for anything it does that in any way diminishes the theoretical value of your property. They seem to be unaware that "the government" really means taxpayers: you and me.

Don't be fooled by this horrible, cynical effort to cripple our ability to regulate land use. As the rebuttal to the proponents' argument says, "[I]f Prop. 90 was a well-designed reform of eminent domain, many thoughtful Californians would support it."